Texas Needs New Asset Forfeiture Law Reform: Spread the Word

Asset forfeiture:  yes, we’re back on the stump about it again.

First, let’s talk about the status of the pending asset forfeiture reform legislation as of the end of February 2017. We wrote about this proposed legislation right around Christmas; see the details in “Will Texas End Civil Forfeiture in 2017?”

1.  Texas Senate

On Monday, Texas Senate Bill 380 (the Asset Forfeiture Reform Bill) remained in the State Affairs Committee as a second co-author was authorized for the bill.  Now, State Senators Chuy Hinojosa (McAllen) and Borris Miles (Houston) join author Senator Konni Burton as co-authors.

Alongside it sits Texas Senate Bill 663, also before the State Affairs Committee.  This is a bill to have any assets forfeiture in the State of Texas be allocated to crime victims.  So, if you’ve got forfeiture, it’s not policing for profit any longer.  (Follow its progress and read the full text of the proposal online here.)

2. Texas House

Over in the Texas House, an identical reform bill is working its way through the Texas legislature.  It is identical to SB380.  HB1364 was filed on January 20, 2017, by Representative Senfronia Thompson (Houston).

President Trump and Texas Asset Forfeiture Reform

Here’s the thing.  President Trump has voiced his take on asset forfeiture in Texas.  Apparently, Trump does not support asset forfeiture reform here in the Lone Star State.  Or anywhere else, apparently.

As described by Emily Stephenson in her piece published by Reuters on February 7, 2017,”Trump questions lawmakers’ efforts to curb asset seizures by police,” President Trump’s position is that there is “no reason” to change current forfeiture procedures here in Texas.   When told of the proposed reform legislation, Trump said he “like to look into that.”

The Reuters piece continues with Trump’s conversation with Rockwall County Sheriff Harold Eavenson, who voiced the opinion that the drug cartels would be happy to see asset forfeiture reform.  The stinger came with Trump joking to Eavenson that if Eavenson identified the state senator responsible for the proposed reform bill “we’ll destroy his career.”

Now, we’re not going down the Trump road.  No.

The Core Issue:  Property Taken by Police without Charge or Conviction

Instead, we’re going to shine light on the issue here, which is this:  in Texas, private property can be seized and kept by law enforcement even if the owner is NEVER CHARGED OR CONVICTED of a crime.

Never charged.  Never convicted.

For details on this, read our earlier posts including:

• Forfeiture Victory for Police: They Can Seize and Keep Assets Even In an Illegal Search Says Texas Supreme Court
• Holder’s New Limits on Asset Forfeiture: Big Deal.
• The Forfeiture Epidemic: When the Government Just Takes Your Property and Keeps It
• Report on Forfeiture Abuse by State and Federal Law Enforcement Added to Michael Lowe Digital Library Today.

Does Your Mother Know That Texas Police are Policing for Profit?

If you sit down and chat with just about anyone here in Texas, you will find that lots of people assume that the police only take (seize) property when there has been a criminal conviction of the owner.  Or at least an arrest.

When you explain that this is not the case, most are shocked.  Think this is criminal defense spin?  Nope.

There’s a new poll out from Right on Crime, of the Texas Public Policy Foundation, that shows 88% of Texans want there to be a criminal conviction on the books before the government can grab (forfeit) that person’s property.

Check out that poll here (hat tip to Grits for Breakfast).  Eighty-seven percent (87%) of those in the Dallas-Fort Worth region approve of asset forfeiture reform.

Asset Reform Bill Ends Federal and Texas Forfeiture Dance

There’s another thing that lots of people don’t know.  There are federal and state forfeiture procedures.  They are separate and independent.  And the two jurisdictions currently work together on grabbing (seizing) property and distributing the proceeds.

See our post for details, “ Forfeiture Funds are Back as Equitable Sharing Program Gears Up in Dallas County and State of Texas.”

The current reform bill puts an end to this ability of Texas law enforcement getting a stake in federal forfeitures.

Who Gets Hurt by Current Asset Forfeiture Process?

Right now, Texas asset forfeiture procedures help people who don’t have that much money to fight a police investigation or a prosecution of criminal charges.  They don’t have the funds to fight the forfeiture.

Forfeitures are civil actions brought by the state.  They can be defended, but they are distinct actions from any criminal matter targeting the owner of the property.   So, the property owners get hurt because they can’t afford to fight to get back their car or pickup truck.

It’s not just those property owners. We all do, really.  Doesn’t it tweak your basic sense of justice for someone’s property to be taken by the government without a criminal conviction?

If so, you join with lots of people who think so.  Polls referenced in a recent Reason article on asset reform confirmed that “even in deep-red states” “massive majorities” are in favor of reform after they learn how “unfair and non-transparent the process is.”

What’s Law Enforcement’s Argument for Asset Forfeiture?

Of course, ask prosecutors and police about current Texas asset forfeiture practices and they will tell you everything is just fine as it is.  You may even hear talk about how forfeiture reform would end up helping the evildoers, like the Mexican Drug Cartels.

Why?  They argue it’s because taking the property is the right thing to do since it’s connected with criminal behavior.  And prosecutors and police cannot take it and keep it unless they have a judge’s court order that it’s okay to do so.

What? Right now, the civil forfeiture action must show a judge that the property (they call it “contraband”) has been seized by police because it either was used for criminal activity or the intent was there that it would be used to help commit a crime.

So they argue there are protections and due process is met sufficiently, when you balance it against all those bad guys doing bad things.

But don’t take this criminal defense lawyer’s synopsis of the government’s stance.  Instead, read the op-ed piece by Joe D. Brown, District Attorney for Grayson County.

It was published on February 17, 2017, in the Fort Worth Star-Telegram as “Don’t reward cartels by making asset forfeiture harder.”  The D.A. from over in Sherman also had a similar op-ed published in the Dallas News on the same day.

Where Does the Money Go? Policing for Profit

One thing that the prosecutors and police don’t mention much is where the property ends up.  The stuff that is taken is used by them.

It goes to the Texas police departments and the state prosecutors. 

That’s why it’s been labelled “policing for profit.”  And it’s millions and millions of dollars.  So much that many police department budgets rely on their forfeitures to make ends meet.  We’ve discussed this in our past asset forfeiture posts.

Remember The Ford Pick-Up Truck?

Remember the former Dallas DA problems with that forfeited Ford Pick-Up?  See, “Dallas D.A. Forfeiture Funds: The Temptation of All That Stuff And The Craig Watkins Scandal.”

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For more, check out this viral video Policing for Profit as well as our web resources and Michael Lowe’s Case Results: